UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
THE RAYMOND CORPORATION
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(Name of Issuer)
Common Stock, Par Value $1.50
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(Title of Class of Securities)
754688-10-9
---------------------------------------------
(CUSIP Number)
Jeffrey E. Schwarz
Metropolitan Capital Advisors, Inc.
660 Madison Avenue
New York, NY 10021
(212) 486-8100
-with copies to-
Joseph F. Mazzella, Esq.
Lane Altman & Owens LLP
101 Federal Street
Boston, Massachusetts 02110
(617) 345-9800
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
February 7, 1997
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement [x]. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.) [ ].
NOTE: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13-d(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
SCHEDULE 13D
CUSIP NO. 754688-10-9 PAGE 2 OF 20 PAGES
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1 Name of Reporting Person
S.S. or I.R.S. Identification No.
of Above Person Metropolitan Capital Advisors, Inc.
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2 Check the Appropriate Box if a Member of a Group* (a) [X]
(b) [ ]
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3 SEC Use Only
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4 Source of Funds* 00
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5 Check Box if Disclosure of Legal Proceeding is
Required Pursuant to Items 2(d) or 2(e) [ ]
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6 Citizenship or Place of Organization New York
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Number of 7 Sole Voting Power 0
Shares -----------------------------------------------------------
Beneficially 8 Shared Voting Power 2,572,684
Owned by -----------------------------------------------------------
Each 9 Sole Dispositive Power 0
Reporting -----------------------------------------------------------
Person With 10 Shared Dispositive Power 488,800
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11 Aggregate Amount Beneficially Owned by Each Reporting Person 2,572,684
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12 Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares* [X]
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13 Percent of Class Represented by Amount in Row (11) 24.27%
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14 Type of Reporting Person* CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
CUSIP NO. 754688-10-9 PAGE 3 OF 20 PAGES
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1 Name of Reporting Person
S.S. or I.R.S. Identification No.
of Above Person KJ Advisors, Inc.
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2 Check the Appropriate Box if a Member of a Group* (a) [X]
(b) [ ]
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3 SEC Use Only
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4 Source of Funds* 00
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5 Check Box if Disclosure of Legal Proceeding is
Required Pursuant to Items 2(d) or 2(e) [ ]
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6 Citizenship or Place of Organization New York
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Number of 7 Sole Voting Power 0
Shares -----------------------------------------------------------
Beneficially 8 Shared Voting Power 155,400
Owned by -----------------------------------------------------------
Each 9 Sole Dispositive Power 0
Reporting -----------------------------------------------------------
Person With 10 Shared Dispositive Power 155,400
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11 Aggregate Amount Beneficially Owned by Each Reporting Person 155,400
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12 Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares* [ ]
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13 Percent of Class Represented by Amount in Row (11) 1.47%
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14 Type of Reporting Person* CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
CUSIP NO. 754688-10-9 PAGE 4 OF 20 PAGES
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1 Name of Reporting Person
S.S. or I.R.S. Identification No.
of Above Person Metropolitan Capital III, Inc..
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2 Check the Appropriate Box if a Member of a Group* (a) [X]
[ ]
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3 SEC Use Only
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4 Source of Funds* 00
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5 Check Box if Disclosure of Legal Proceeding is
Required Pursuant to Items 2(d) or 2(e) [ ]
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6 Citizenship or Place of Organization New York
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Number of 7 Sole Voting Power 0
Shares -----------------------------------------------------------
Beneficially 8 Shared Voting Power 139,000
Owned by -----------------------------------------------------------
Each 9 Sole Dispositive Power 0
Reporting -----------------------------------------------------------
Person With 10 Shared Dispositive Power 139,000
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11 Aggregate Amount Beneficially Owned by Each Reporting Person 139,000
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12 Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares* [ ]
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13 Percent of Class Represented by Amount in Row (11) 1.31%
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14 Type of Reporting Person* CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
CUSIP NO. 754688-10-9 PAGE 5 OF 20 PAGES
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1 Name of Reporting Person
S.S. or I.R.S. Identification No.
of Above Person Jeffrey E. Schwarz
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2 Check the Appropriate Box if a Member of a Group* (a) [X]
(b) [ ]
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3 SEC Use Only
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4 Source of Funds* None
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5 Check Box if Disclosure of Legal Proceeding is
Required Pursuant to Items 2(d) or 2(e) [ ]
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6 Citizenship or Place of Organization U.S.A.
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Number of 7 Sole Voting Power 0
Shares -----------------------------------------------------------
Beneficially 8 Shared Voting Power 2,572,684
Owned by -----------------------------------------------------------
Each 9 Sole Dispositive Power 0
Reporting -----------------------------------------------------------
Person With 10 Shared Dispositive Power 783,200
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11 Aggregate Amount Beneficially Owned by Each Reporting Person 2,572,684
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12 Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares* [X]
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13 Percent of Class Represented by Amount in Row (11) 24.27%
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14 Type of Reporting Person* IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
CUSIP NO. 754688-10-9 PAGE 6 OF 20 PAGES
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1 Name of Reporting Person
S.S. or I.R.S. Identification No.
of Above Person Karen Finerman
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2 Check the Appropriate Box if a Member of a Group* (a) [X]
(b) [ ]
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3 SEC Use Only
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4 Source of Funds* None
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5 Check Box if Disclosure of Legal Proceeding is
Required Pursuant to Items 2(d) or 2(e) [ ]
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6 Citizenship or Place of Organization U.S.A.
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Number of 7 Sole Voting Power 0
Shares -----------------------------------------------------------
Beneficially 8 Shared Voting Power
Owned by -----------------------------------------------------------
Each 9 Sole Dispositive Power 0
Reporting -----------------------------------------------------------
Person With 10 Shared Dispositive Power
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11 Aggregate Amount Beneficially Owned by Each Reporting Person 2,572,684
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12 Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares* [X]
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13 Percent of Class Represented by Amount in Row (11) 24.27%
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14 Type of Reporting Person* IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
CUSIP NO. 754688-10-9 PAGE 7 OF 20 PAGES
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1 Name of Reporting Person
S.S. or I.R.S. Identification No.
of Above Person Robert F. Lietzow, Jr.
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2 Check the Appropriate Box if a Member of a Group* (a) [X]
(b) [ ]
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3 SEC Use Only
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4 Source of Funds* PF
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5 Check Box if Disclosure of Legal Proceeding is
Required Pursuant to Items 2(d) or 2(e) [ ]
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6 Citizenship or Place of Organization U.S.A.
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Number of 7 Sole Voting Power 13,000
Shares -----------------------------------------------------------
Beneficially 8 Shared Voting Power 0
Owned by -----------------------------------------------------------
Each 9 Sole Dispositive Power 13,000
Reporting -----------------------------------------------------------
Person With 10 Shared Dispositive Power 0
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11 Aggregate Amount Beneficially Owned by Each Reporting Person 8,000
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12 Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares* [ ]
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13 Percent of Class Represented by Amount in Row (11) .12%
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14 Type of Reporting Person* IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
CUSIP NO. 754688-10-9 PAGE 8 OF 20
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ITEM 1. SECURITY AND ISSUER
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Securities acquired: Common Stock, par value $1.50 ("Common Stock")
Issuer: The Raymond Corporation
Principal Executive Offices: South Canal Street
Greene, New York 13778
ITEM 2. IDENTITY AND BACKGROUND
-----------------------
(a) This Schedule is being filed jointly by the following reporting
persons (hereinafter sometimes collectively referred to as the "Reporting
Persons") pursuant to an Agreement of Joint Filing attached hereto as Exhibit A:
(i) Metropolitan Capital Advisors, Inc., a New York corporation
("Metropolitan Capital"), which is the sole General Partner of
Metropolitan Capital Advisors, L.P., a Delaware limited
partnership. Metropolitan Capital Advisors, L.P. is the sole
General Partner of Bedford Falls Investors, L.P., a Delaware
limited partnership.
(ii) KJ Advisors, Inc., a New York corporation, which is the sole
General Partner of Metropolitan Capital Partners II, L.P., a
New York limited partnership.
(iii) Metropolitan Capital III, Inc., a Delaware corporation, which
is the sole General Partner of Metropolitan Capital Partners
III, L.P., a Delaware limited partnership.
(iv) Jeffrey E. Schwarz, an individual who is a Director and the
Chief Executive Officer, Treasurer and Secretary of
Metropolitan Capital, KJ Advisors, Inc., and Metropolitan
Capital III, Inc.
(v) Karen Finerman, an individual who is a Director and the
President of Metropolitan Capital, KJ Advisors, Inc., and
Metropolitan Capital III, Inc.
(vi) Robert F. Lietzow, Jr., an individual who is a Vice President
of Metropolitan Capital, KJ Advisors, Inc., and Metropolitan
Capital III, Inc.
(b), (c) and (f) Each of the Reporting Persons has a business address
of 660 Madison Avenue, 20th Floor, New York, New York 10021.
Metropolitan Capital is a privately owned New York corporation, the
principal business of which is to act as General Partner of Metropolitan Capital
Advisors, L.P. Metropolitan Capital Advisors, L.P. is the sole General Partner
of Bedford Falls Investors, L.P., which is in the business of purchasing, for
investment and trading purposes, securities and other financial instruments.
KJ Advisors, Inc. is a privately owned New York corporation, the
principal business of which is to act as General Partner of Metropolitan Capital
Partners II, L.P. Metropolitan Capital Partners II, L.P. is a privately owned
partnership which provides administrative services to Bedford Falls Investors,
L.P., and which also renders investment management and advisory services to
institutional and other private investors regarding investment and trading in
securities and other financial instruments. All of the securities of the Issuer
reported herein as
CUSIP NO. 754688-10-9 PAGE 9 OF 20
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beneficially owned by KJ Advisors, Inc. are held in a managed brokerage account
over which KJ Advisors, Inc., as General Partner of Metropolitan Capital
Partners II, L.P. has discretionary trading authority (the "Managed Account").
Metropolitan Capital III, Inc. is a privately owned Delaware
corporation, the principal business of which is to act as General Partner of
Metropolitan Capital Partners III, L.P. Metropolitan Capital Partners III, L.P.
is a privately owned partnership which renders investment management and
advisory services to Metropolitan Capital Advisors International Limited, which
is in the business of purchasing, for investment and trading purposes,
securities and other financial instruments.
Jeffrey E. Schwarz, Karen Finerman and Robert F. Lietzow, Jr. are each
United States citizens residing in the State of New York whose principal
occupations are as executive officers, and with respect to Jeffrey Schwarz and
Karen Finerman, Directors of Metropolitan Capital, KJ Advisors, Inc., and
Metropolitan Capital III, Inc.
(d) No events have occurred which would be required to be reported
under the provisions of this Item.
(e) No events have occurred which would be required to be reported
under the provisions of this Item.
ITEM 3. SOURCE AND AMOUNT OF FUNDS
--------------------------
The sources of the funds used by Metropolitan Capital to purchase
Common Stock on behalf of Bedford Falls Investors, L.P., were working capital
and margin borrowing through brokerage accounts maintained at Bear, Stearns &
Company. The approximate aggregate amount of funds used to purchase such
securities for Bedford Falls Investors, L.P. was $9,080,220. The portion of such
funds provided by margin borrowing is not readily determinable and varies from
time to time as a result of varying margin account availability and other
unrelated, ongoing transactions in such accounts. All such securities were
acquired by open market purchases.
The sources of funds used to purchase Common Stock on behalf of the
Managed Account was equity capital in the Managed Account and margin borrowing
through a brokerage account maintained at Bear, Stearns & Company. The
approximate aggregate amount of funds used to purchase such securities for the
Managed Account was $2,991,774. The portion of such funds provided by margin
borrowing is not readily determinable and varies from time to time as a result
of varying margin account availability and other unrelated, ongoing transactions
in the Managed Account. All such securities were acquired by open market
purchases.
The sources of funds used to purchase Common Stock on behalf of
Metropolitan Capital Advisors International Limited were working capital and
margin borrowing through brokerage accounts maintained at Bear Stearns &
Company. The approximate aggregate amount of funds used to purchase such
securities was $2,591,328. The portion of such funds provided by margin
borrowing is not readily determinable and varies from time to time as a result
of varying margin account availability and other unrelated ongoing transactions
in such accounts. All such securities were acquired by open market purchases.
The source of funds used by Robert F. Lietzow, Jr. to purchase Common
Stock was personal funds, which funds were in the approximate amount of
$243,322.
ITEM 4. PURPOSE OF THE TRANSACTION
--------------------------
Each of the Reporting Persons has acquired the securities to obtain a
substantial equity position in the Issuer for investment, but also seeks
representation on the Issuer's Board of Directors. On behalf of itself and the
CUSIP NO. 754688-10-9 PAGE 10 OF 20
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Reporting Persons, Metropolitan Capital has (by letter dated February 18, 1997,
attached hereto as Exhibit B) requested a meeting with management to discuss
substantial changes in the make-up of the Board, as well as the Issuer's
business prospects and strategic alternatives.
Based upon discussions with investment bankers in contact with
potential acquirors, Metropolitan Capital believes that a sale or merger of the
Issuer will attain the highest values available for shareholders. Accordingly,
the Reporting Persons' have proposed that a sale or merger of the Company be
aggressively pursued by management, and that representatives of the Reporting
Persons be added to the Board to assist in evaluating such alternatives.
Metropolitan Capital has notified the Issuer that, pending the results
of a meeting with management, its current intention is to propose stockholder
action necessary to increase the size of the Issuer's Board of Directors from 10
to 13, and to elect its nominees to fill six vacancies at the Issuer's Annual
Meeting to be held on May 3, 1997. In furtherance of this proposal, Metropolitan
Capital has entered into voting arrangements with certain other stockholders,
including Mr. George Raymond, a current director of the Issuer, pursuant to
which an aggregate of at least 16.8% of the Issuer's outstanding common stock
will be voted in favor of such actions and the nominees to be proposed by
Metropolitan Capital (see Item 6).
If elected, Metropolitan Capital's nominees, and Mr. George Raymond,
will comprise a majority of the Board of Directors. Based upon the information
currently available to it, and Mr. Raymond's statements in public filings,
Metropolitan Capital expects that such Board majority would approve the active
exploration of the sale or merger of the Issuer. If such alternatives were
pursued and consummated, such a transaction may result in a substantial change
in the Issuer's corporate organization and operations, including causing the
Issuer to cease to be a publicly traded company.
The Reporting Persons may modify their proposals and intentions based
upon developments in the Issuer's business, discussions with the Issuer, actions
of management or a change in market or other conditions. The Reporting Persons
will continually consider modifications of their investment and position, or may
take other steps, change their intentions, or trade in the Issuer's securities
at any time, or from time to time.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
------------------------------------
(a) (b) The beneficial ownership and voting and dispositive power of
each of the Reporting Persons over Common Stock of the Issuer as of the date
hereof is as follows:
(i) Metropolitan Capital has purchased no shares of Common Stock
of the Issuer solely for its own account. However,
Metropolitan Capital may be deemed to have shared voting and
dispositive power over the 488,800 shares representing 4.61%
of Common Stock of the Issuer beneficially owned by Bedford
Falls Investors, L.P.
In addition to the above, Metropolitan Capital may be deemed
to have shared voting power over 1,776,484 shares of Common
Stock of the Issuer representing 16.76% by virtue of being a
party to certain voting arrangements with certain stockholders
of the Issuer (see Item 6 hereto).
(ii) KJ Advisors, Inc. is the owner of shares of Common Stock of
the Issuer solely by reason of its position as General Partner
of Metropolitan Capital Partners II, L.P. which has
discretionary voting and dispositive power over assets held in
the Managed Account. Thus, by virtue of being the General
Partner of Metropolitan Capital Partners II, L.P., KJ
Advisors, Inc. may be deemed to
CUSIP NO. 754688-10-9 PAGE 11 OF 20
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have shared voting and dispositive power over the 155,400
shares representing 1.47% of Common Stock of the Issuer held
in the Managed Account.
(iii) Metropolitan Capital III, Inc. has purchased no shares of
Common Stock of the Issuer solely for its own account.
However, by reason of its position as General Partner of
Metropolitan Capital Partners III, L.P. which has
discretionary voting and dispositive power over the assets of
Metropolitan Capital Advisors International Limited,
Metropolitan Capital III, Inc. may be deemed to have shared
voting and dispositive power over the 139,000 shares
representing 1.31% of the Common Stock of the Issuer owned by
Metropolitan Capital Advisors International Limited.
(iv) Jeffrey Schwarz may be deemed the beneficial owner of
2,572,684 shares representing 24.27% of the Common Stock of
the Issuer as a result of his being a director, executive
officer and controlling stockholder of Metropolitan Capital,
KJ Advisors, Inc. and Metropolitan Capital III, Inc. Jeffrey
Schwarz does not beneficially own any shares of Common Stock
of the Issuer other than through such positions.
(v) Karen Finerman may be deemed the beneficial owner of 2,572,684
shares representing 24.27% of the Common Stock of the Issuer
as a result of her being a director and executive officer of
Metropolitan Capital, and a director, executive officer and
stockholder of KJ Advisors, Inc. and Metropolitan Capital III,
Inc. Karen Finerman does not beneficially own any shares of
Common Stock of the Issuer other than through such positions.
(vi) Robert F. Lietzow, Jr. is the beneficial owner of 13,000
shares of Common Stock of the Issuer. The total number of
shares of Common Stock beneficially owned by Robert F.
Lietzow, Jr. represents .12% of the shares of Common Stock
outstanding.
The number of shares beneficially owned and the percentage of
outstanding shares represented thereby, for each of the Reporting Persons, have
been computed in accordance with Rule 13D-3 under the Securities Exchange Act of
1934, as amended. The percentages of ownership described above are based on the
10,600,000 shares of Common Stock reported outstanding by the Issuer in a
January 24, 1997 press release.
(c) Transactions in the class of securities reported on herein effected
within the last 60 days by Metropolitan Capital for and on behalf of Bedford
Falls Investors, L.P. are as follows. All such transactions comprise open market
purchases of Common Stock unless otherwise indicated.
DATE NO. OF SHARES PRICE PER SHARE TOTAL
---- ------------- --------------- -----
01/06/97 267,000 $ 17.125 $4,572,390.00
01/28/97 48,500 18.875 915,452.50
02/05/97 4,500 19.550 87,990.00
02/07/97 43,200 20.063 866,715.00
02/11/97 39,900 20.549 819,920.10
02/12/97 62,400 21.100 1,316,402.88
02/14/97 20,100 21.500 432,150.00
02/14/97 3,200 21.625 69,200.00
Transactions in the class of securities reported on herein effected
within the last 60 days by KJ Advisors, Inc., for and on behalf of the Managed
Account are as follows. All such transactions comprise open market purchases of
Common Stock unless otherwise indicated.
CUSIP NO. 754688-10-9 PAGE 12 OF 20
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DATE NO. OF SHARES PRICE PER SHARE TOTAL
---- ------------- --------------- -----
01/06/97 25,000 $ 17.125 $ 428,140.00
01/15/97 43,500 18.875 821,077.50
01/28/97 32,000 18.875 604,015.00
02/07/97 15,200 20.063 304,965.00
02/11/97 12,700 20.549 260,987.30
02/12/97 19,900 21.100 419,814.38
02/14/97 6,100 21.500 131,150.00
02/14/97 1,000 21.625 21,625.00
Transactions in the class of securities reported on herein effected
within the last 60 days by Metropolitan Capital III, Inc., for and on behalf of
Metropolitan Capital Advisors International Limited are as follows. All such
transactions comprise open market purchases of Common Stock unless otherwise
indicated.
DATE NO. OF SHARES PRICE PER SHARE TOTAL
---- ------------- --------------- -----
01/06/97 70,000 $ 17.125 $1,198,765.00
01/28/97 19,500 18.875 368,077.50
02/06/97 1,200 19.552 3,475.00
02/07/97 13,600 20.063 272,865.00
02/11/97 11,400 20.549 234,273.60
02/12/97 17,700 21.103 73,402.74
02/14/97 4,800 21.500 103,200.00
02/14/97 800 21.625 17,300.00
Transactions in the class of securities reported on herein effected
since January 6, 1997 by Robert F. Lietzow, Jr. are as follows. All such
transactions comprise open market purchases of Common Stock unless otherwise
indicated.
DATE NO. OF SHARES PRICE PER SHARE TOTAL
---- ------------- --------------- -----
01/06/97 8,000 $ 17.125 $137,072.00
02/14/97 5,000 21.250 106,250.00
(d) Not Applicable
(e) Not Applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS AND RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
-----------------------------------------------------------------------
Metropolitan Capital has reached voting agreements and understandings
with unaffiliated stockholders who, in the aggregate, hold voting power over
1,776,484 shares (16.76%) of the Issuer's Common Stock. Accordingly,
Metropolitan Capital may be deemed to have voting power over an aggregate of
2,572,684 shares, (24.27%) of Common Stock of the Issuer. Such amount includes
488,800 shares (4.61%) of Common Stock beneficially owned by Bedford Falls
Investors, L.P., over which Metropolitan Capital has indirect voting control, an
aggregate of 294,400 shares (2.78%) beneficially owned by the Managed Account
and Metropolitan Capital Advisors International Limited, the voting of which
shares are controlled by affiliates of Metropolitan Capital and
CUSIP NO. 754688-10-9 Page 13 of 20
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13,000 (.12%) beneficially owned by Robert F. Lietzow, Jr. Further information
regarding the voting arrangements is set forth immediately below, and in
Exhibits to this Schedule 13D. All information set forth herein regarding
written voting agreements is qualified by reference to the more complete terms
set forth in the forms of agreements included as Exhibits hereto.
On February 15, 1997, George Raymond, Jr. and his spouse, Ellen
Robinson Raymond, (as holders of an aggregate of 664,806 shares, 6.27%) agreed
with Metropolitan Capital to enter into a voting agreement pursuant to which
they agreed to vote all shares held by them in favor of Metropolitan Capital's
nominees for election to the Company's Board of Directors, and in favor of other
actions (including by-law amendments to expand the size of the Board) which may
be necessary to elect such nominees. A written agreement to such effect (in the
form attached hereto as Exhibit C) was executed on February 17, 1997 (the
"Agreement"). The Agreement generally has a term expiring following the
conclusion of the second Annual Meeting of Shareholders after execution, or
September 30, 1997, if Metropolitan Capital has not earlier nominated candidates
for election to the Issuer's Board of Directors. The Agreement does not restrict
the parties in any way as to voting on any other matter, including any sale,
merger or other significant transaction. The Agreement has no effect on Mr.
Raymond's or any other party's responsibilities or actions as a director of the
Issuer.
Following the execution of the Agreement by Mr. Raymond, on February
17, 1997, Scoggin, Inc., a Delaware corporation ("Scoggin") entered into a
voting agreement with Metropolitan Capital respecting 549,101 shares (5.18%)
held by it (attached hereto as Exhibit D). Such voting agreement provides that
Scoggin will vote such shares in support of the Metropolitan Capital nominees
for election to the Company's Board of Directors, and otherwise in a manner
similar to the Agreement entered into between Metropolitan Capital and George
Raymond. The voting agreement with Scoggin provides for the sharing of certain
expenses between Metropolitan Capital and Scoggin.
On February 18, 1997, Metropolitan Capital entered into voting
agreements (substantially in the form attached hereto as Exhibit C) with the
following beneficial holders of the Issuer's Common Stock, all of whom are
related to Mr. George Raymond: Jean C. Raymond, holder of 114,229 (1.08%); and
Madeleine Raymond Young, holder of 95,774 shares (.90%). Also on such date,
Metropolitan Capital was advised that Mr. George Raymond III, the son of George
Raymond, Jr., and the holder of 99,723 shares (.94%), had agreed to enter into
voting arrangements comparable to the Agreement executed with Mr. George
Raymond, Jr.
On February 18, 1997, Huntington Trust Co., trustee of certain trusts
for the benefit of George Raymond, Jr. and Madeleine Raymond Young, notified
Metropolitan Capital of its intention to vote, as trustee, an aggregate of
252,851 shares (2.38%) in favor of the Metropolitan Capital nominees and in
favor of by-law amendments related to such election.
Two individuals holding an aggregate of 9,500 shares of Common Stock
have preliminarily agreed with Metropolitan Capital to serve as nominees for
elections as directors of the Issuer. The Reporting Persons disclaim beneficial
ownership of such shares, other than as described above, the Reporting Persons
disclaim beneficial ownership of all shares of Common Stock held by the
individuals and entities with which voting arangements have been agreed to.
CUSIP NO. 754688-10-9 PAGE 14 OF 20
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ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
--------------------------------
Exhibit A. Agreement of Joint Filing
Exhibit B. Letter to Issuer from Metropolitan Capital dated
February 18, 1997.
Exhibit C. Form of Voting Agreement with George Raymond.
Exhibit D. Form of Voting Agreement with Scoggin, Inc.
CUSIP NO. 754688-10-9 PAGE 15 OF 20
----------- ------- --------
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
This statement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute one (1)
instrument.
Metropolitan Capital Advisors, Inc.
By: /s/ Jeffrey Schwarz
-----------------------------------------
Jeffrey Schwarz, Chief Executive Officer
Dated as of: February 18, 1997
CUSIP NO. 754688-10-9 PAGE 16 OF 20
----------- ------- --------
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
This statement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute one (1)
instrument.
KJ Advisors, Inc.
By: /s/ Jeffrey Schwarz
-----------------------------------------
Jeffrey Schwarz, Chief Executive Officer
Dated as of: February 18, 1997
CUSIP NO. 754688-10-9 PAGE 17 OF 20
----------- ------- --------
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
This statement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute one (1)
instrument.
Metropolitan Capital III, Inc.
By: /s/ Jeffrey Schwarz
-----------------------------------------
Jeffrey Schwarz, Chief Executive Officer
Dated as of: February 18, 1997
CUSIP NO. 754688-10-9 PAGE 18 OF 20
----------- ------- --------
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
This statement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute one (1)
instrument.
By: /s/ Jeffrey Schwarz
-----------------------------------------
Jeffrey Schwarz
Dated as of: February 18, 1997
CUSIP NO. 754688-10-9 PAGE 19 OF 20
----------- ------- --------
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
This statement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute one (1)
instrument.
By: /s/ Karen Finerman
-------------------------------------
Karen Finerman
Dated as of: February 18, 1997
CUSIP NO. 754688-10-9 PAGE 20 OF 20
----------- ------- --------
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
This statement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which shall constitute one (1)
instrument.
By: /s/ Robert F. Lietzow, Jr.
--------------------------------------
Robert F. Lietzow, Jr.
Dated as of: February 18, 1997
EXHIBIT A
AGREEMENT OF JOINT FILING
THE RAYMOND CORPORATION
COMMON STOCK PAR VALUE $1.50
In accordance with Rule 13D-1(f) under the Securities Exchange Act of
1934, as amended, the undersigned hereby confirm the agreement by and among them
to the join filing on behalf of each of them of a Statement on Schedule 13D and
any and all amendments thereto, with respect to the above referenced securities
and that this Agreement be included as an Exhibit to such filing.
This Agreement may be executed in any number of counterparts each of
which shall be deemed to be an original and all of which together shall be
deemed to constitute one and the same Agreement.
WITNESS WHEREOF, the undersigned hereby execute this Agreement as of
this 18th day of February, 1997.
METROPOLITAN CAPITAL ADVISORS, INC. METROPOLITAN CAPITAL III, INC
By: /s/ Karen Finerman By: /s/ Karen Finerman
------------------------------ ------------------------------
Karen Finerman, President Karen Finerman, President
KJ ADVISORS, INC.
By: /s/ Karen Finerman
------------------------------
Karen Finerman, President
/s/ Jeffrey Schwarz /s/ Karen Finerman
- --------------------------------- --------------------------------
Jeffrey Schwarz, Individually Karen Finerman, Individually
/s/ Robert F. Lietzow, Jr.
- ---------------------------------
Robert F. Lietzow, Jr., President
EXHIBIT B
METROPOLITAN CAPITAL ADVISORS, INC.
660 MADISON AVENUE
NEW YORK, NY 10021
February 18, 1997
By Fax
- -------
Mr. Ross K. Colquhoun
Chairman of the Board
Raymond Corp. (the "Company")
South Canal Street
Greene, New York 13778
Dear Mr. Colquhoun:
For your information, we are enclosing, by fax, a courtesy copy of SEC
Schedule 13D being filed today by Metropolitan Capital Advisors, Inc.
("Metropolitan Capital") and certain affiliated entities. Metropolitan Capital
and affiliates are reporting the acquisition of 796,200 shares (7.5%) of the
Company's Common Stock, as well as entering into voting arrangements with other
stockholders pursuant to which holders of an aggregate of an additional
1,776,484 shares (16.76%) of the Company's Common Stock have agreed to vote in
favor of the Metropolitan Capital nominees to the Board of Directors. I am
writing to both advise you of our position, and to commence a dialogue which I
hope will be to the benefit of all shareholders.
As described in the Schedule 13D, Metropolitan Capital and affiliates
have acquired the Common Stock for investment, believing that the Company's
Common Stock has substantially greater value than is reflected in its current
market price. As you know, for the year ended January 5, 1997, (the day before
Metropolitan Capital and affiliates began their purchase of the Company's Common
Stock), the Company's share price experienced a significant decline in value, as
compared to a significant increase in the S&P 500 Index. Based upon discussions
with investment bankers who have contacted potential acquirors, we believe that
shareholders can attain the highest value through a strategic transaction such
as the sale or merger of the Company. To date, management has not aggressively
pursued such a strategy. We believe that a Board of Directors more
representative of the Company's shareholders may be necessary to do so.
Raymond Corp.
February 18, 1997
Page 2
We are writing to request a meeting with management, on or before March
4, 1997, at which we can discuss the Company's strategic alternatives and the
addition of shareholder representatives to the Company's Board of Directors.
Pending the results of those conversations, it is our current intention to
propose for shareholder approval at the Company's Annual Meeting on May 3, 1997,
amendments to the By-laws by which shareholders will be authorized to increase
the size of the Board to thirteen members (the maximum provided by the Company's
Certificate of Incorporation), fill the newly created vacancies by shareholder
vote at such Annual Meeting, and take such other action as may be necessary to
accomplish such expansion and election as soon as possible.
It is also our current intention to nominate three persons for election
to the three vacancies which are scheduled to occur at the next Annual Meeting,
as well as to nominate persons for the three vacancies which would be created by
the expansion of the Board. In this regard, we would appreciate your contacting
our counsel, Joseph F. Mazzella, at Lane Altman & Owens LLP, Boston,
Massachusetts (617) 345-9800, to provide us with information regarding the
record date established, or to be established, for such Annual Meeting, the
expected location of the meeting, and any other information relevant to any
shareholder proposals or nominations that we may make.
If we are unable to agree on the make-up of a Board to set the
strategic direction of the Company, then we believe shareholders must have the
opportunity to decide on their Board in a timely and orderly way. Accordingly,
we fully expect the Company to continue its history of holding the Annual
Meeting on the schedule set forth in its By-laws, and to not in any way
interfere with the corporate governance process, either through delay or
otherwise. We will, of course, take any action necessary to ensure that the
election of directors does, in fact, proceed on a fair and timely basis.
We look forward to hearing from you as early as possible.
Very truly yours,
/s/ Jeffrey E. Schwarz
------------------------
Jeffrey E. Schwarz
EXHIBIT C
STOCKHOLDER'S AGREEMENT
STOCKHOLDER'S AGREEMENT, dated February 18, 1997 (the "Agreement"),
between Metropolitan Capital Advisors, Inc., a Delaware corporation
("Metropolitan"), and George Raymond, a resident of _________, ___________ (the
"Stockholder").
WHEREAS, Metropolitan and the Stockholder have each independently
concluded that their respective interests, and the interests of other
shareholders of Raymond Corporation, a New York corporation (the "Company")
would be furthered by seeking greater shareholder representation on the
Company's Board of Directors; and
WHEREAS, Metropolitan and the Stockholder each desire to establish in
this Agreement certain terms and conditions relating to the parties' voting of
the common stock of the Company in regard to election of such directors and
matters related thereto; and
WHEREAS, Metropolitan is the general partner of Bedford Falls
Investors, L.P., a Delaware limited partnership ("Bedford"), which is the
beneficial owner of shares of common stock of the Company, and as general
partner Metropolitan has the power to direct the voting of such shares of common
stock;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
1. Representations and Warranties.
(a) Metropolitan represents and warrants to the Stockholder as
follows:
(i) Metropolitan has full power and authority to execute,
deliver and perform this Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by Metropolitan and constitutes a valid
and binding obligation of Metropolitan, enforceable against
Metropolitan in accordance with its terms;
(iii) The execution, delivery and performance of this
Agreement by Metropolitan do not violate or conflict with or
constitute a default under the Metropolitan organizational
instruments or any material agreement to which it is a party or
by which it or its property is bound.
(b) The Stockholder represents and warrants to Metropolitan as
follows:
(i) The Stockholder has full power and authority to execute,
deliver and perform this Agreement;
(ii) This Agreement has been duly and validly executed and
delivered by the Stockholder and constitutes a valid and binding
obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms; and
(iii) The execution, delivery and performance of this
Agreement by the Stockholder does not violate or conflict with
or constitute a default under any material agreement to which
Stockholder is a party, or by which Stockholder is bound.
2. Term of Agreement. The term (the "Term") of this Agreement shall
commence on the date hereof and shall continue until the earlier to occur of (i)
the conclusion of the second Annual Meeting of stockholders following the
execution hereof, and (ii) the date on which the Voting Power of the Voting
Securities beneficially owned by Metropolitan and any affiliates shall represent
less than six percent (6%) of the Total Voting Power, as evidenced by
Metropolitan's most recently filed Schedule 13D (and excluding the effect of
increases in the number of Voting Securities outstanding), and (iii) September
30, 1997, if, but only if, neither Metropolitan nor its affiliates has by such
date proposed amendments to the Company's by laws to increase the dated number
of Directors by the Company and nominated persons for election to such vacancies
on the Company's Board of Directors. For the purposes of this Agreement, (i) the
term "Voting Securities" shall mean all securities of the Company entitled to
vote generally in the election of directors of the Company, and (ii) the Term
"Voting Power" shall mean voting power in the general election of directors of
the Company, and (iii) the term "Total Voting Power" shall mean the total
combined Voting Power of all the Voting Securities then outstanding.
3. Voting and Other. (a) Each of the Stockholder and Metropolitan agree
that, during the Term (i) it will, and will cause their respective affiliates
to, be present, in person or represented by proxy, at all stockholder meetings
of the Company for the election of directors, so that all Voting Securities
beneficially owned by it and its affiliates shall be counted for the purpose of
determining the presence of a quorum for the election of directors at such
meetings, and (ii) it will, and will cause its affiliates to, vote, or act by
consent with respect to, all Voting Securities beneficially owned by it and its
affiliates (x) for the election of the nominees for the Company's Board of
Directors nominated by Metropolitan, or its affiliates, or such other nominees
otherwise identified in writing by Metropolitan as being nominees for which
Metropolitan will cast votes in favor ("Metropolitan Nominees"), (y) amend the
by laws of the Company to increase the total number of Directors of the Company
to be elected by Shareholders to 13, six (6) of whom will be elected during the
course of the next two annual meetings, and (z) for such other actions of
stockholders as may be reasonably necessary or helpful to cause the election of
the Metropolitan Nominees to the Company's Board of Directors at the earliest
possible time, including such amendments to the Company's by-laws or Certificate
of Incorporation as may be proposed or supported by Metropolitan. In the event
any party hereto is not expected to be present at an Annual Meeting or
adjournment thereof at a time when this
2
Agreement is in effect, then he shall execute in favor of a party attending a
revocable proxy to vote his Voting Securities in the manner and for the purposes
outlined hereinabove. Other than the foregoing, there shall be no restrictions
on any party's ability to vote any Voting Securities for any other purpose, and
subject to compliance to Article 6 hereof any party may dispose in whole or in
part of his economic interest in his Voting Securities in any manner which
complies with applicable law. It is expressly understood and agreed that the
provisions of this Agreement are not intended to cover and shall have no force
and effect upon any securities of Raymond Corp. with respect to which a party
hereto acts as a fiduciary under any trust instrument for the benefit of a third
party.
(b) Each of stockholder and Metropolitan agree that Metropolitan
shall be solely responsible for the conduct of any proxy contest soliciting the
election of the Metropolitan Nominees, or other matters referred to in 3(a)
above, including all decisions and negotiations to be made in connection
therewith, and Metropolitan shall be responsible for all expenses incurred by it
including all legal, printing, solicitor, litigation and other expenses incurred
in connection with this agreement, the nomination or election of the
Metropolitan Nominees, the solicitation of proxies or any other matter arising
our of the matters referred to herein. Stockholder acknowledges that
Metropolitan may seek to share such expenses with other parties, or to obtain
reimbursement of such expenses from the Company, and that Stockholder does not
intend to seek reimbursement for expenses incurred by Stockholder prior to the
date hereof either from Metropolitan or the Company.
4. Acquisition of Voting Securities. Notwithstanding any other
provision of this Agreement, any Voting Securities acquired by the Stockholder
or any party hereto subsequent to the date hereof, and within the Term, shall
automatically and without any action by any party hereto, be subject to the
provisions of this Agreement.
5. Certain Prohibited Actions. Other than in support of the
Metropolitan Nominees, during the Term, without the prior written consent of
Metropolitan, the Stockholder and any other parties hereto, with respect to the
election of Directors or by law amendments to increase the number of directors
as described above, will not, and will cause each of its controlled affiliates
not to, singly or as part of a "group", directly or indirectly, through one or
more intermediaries: (i) make, support, or vote in favor of, or in any way
participate, directly or indirectly, in any "solicitation" of "proxies" (as such
terms are defined or used in Regulation 14A under the Exchange Act) with respect
to the Voting Securities (including by the execution of actions by written
consent), become a "participant" in any "election contest" (as such terms are
defined or used in Rule 14A-11 under the Exchange Act) with respect to the
Company or seek to advise or influence any person or entity with respect to the
voting of any Voting Securities; (ii) initiate, propose, or participate in the
solicitation of stockholders for the approval of, one or more stockholder
proposals with respect to the Company in Rule 14A-8 under the Exchange Act or
induce any other individual or entity to initiate any stockholder proposal
relating to the Company; (iii) form, join, influence or participate in a
"group", act in concert with any other person or entity or otherwise become a
"person", for the purpose of acquiring, holding, voting or disposing of any
Voting Securities or taking any other actions prohibited under this Section 5;
(iv) act, alone or in concert with others (including by providing financing for
another party), to
3
seek or offer to control the Company (provided that actions of the Metropolitan
Nominees on the Board pursuant to Section 3(a) shall not be deemed a violation
of the foregoing); (v) deposit any Voting Securities in a voting trust or
subject any Voting Securities to any arrangement or agreement with respect to
the voting thereof; or (vi) disclose any intention, plan or arrangement
inconsistent with the foregoing prohibitions or advise or assist any other
person in connection with the foregoing prohibitions; provided, however, that
nothing contained herein shall prohibit any person, including the Stockholder
from publicly announcing his position as a director with respect to any matter
concerning the Company.
6. Disposition of Voting Securities. During the Term, the Stockholder
and Metropolitan shall not transfer any Voting Securities, whether by sale,
assignment, pledge, encumbrance, gift or otherwise, unless (x) the transferee of
such Voting Securities agrees in writing to be bound by the provisions hereof or
(y) the Transferor executes an irrevocable Proxy in favor of the other parties
hereto which incorporates the provisions of this Agreement and which is valid
under the laws of the State of New York, accompanied by an opinion of counsel as
validity and enforceability, or (z) such transfer takes place after the record
date for the second annual Meeting of Shareholders after the date of this
Agreement so that the Transferor party hereto continues as a matter of law to be
able to vote the Voting Securities at the Annual Meeting and does not execute a
proxy in favor of the transferee for such purpose.
7. Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by i t of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreement and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
8. Amendment and Modification. This Agreement may be amended, modified
and supplemented only by written agreement of Metropolitan and the Stockholder.
9. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be made in writing by hand delivery,
registered first-class mail, telecopier or air courier guaranteeing overnight
delivery:
(a) If to Metropolitan:
c/o Joseph F. Mazzella
Lane Altman & Owens LLP
101 Federal Street
Boston, MA 02110
or to such other person or address as Metropolitan shall furnish to the
Stockholder in writing;
4
(b) If to the Stockholder:
c/o Stu Miesenzahl
Harter, Secrest & Emery
431 East Fayette Street
Syracuse, NY 13202
or to such other person or address as the Stockholder shall furnish to
Metropolitan in writing.
All such notices, requests, demands and other communications shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five business days after being deposited in the mail, postage
prepaid, if sent by registered first-class mail; when receipt acknowledged, if
telecopied; and on the next business day, if timely delivered to an air courier
guaranteeing overnight delivery.
10. Required Filings. Each party hereto further agrees that they have
made, and shall continue to make, all reasonable efforts, in good faith, to
comply with all applicable state or federal securities laws with respect to
their ownership of the Company's securities and the transactions and matters
contemplated herein.
11. Severability. In the event that any provision(s) of this Agreement
shall be held illegal, invalid or unenforceable under applicable law, then such
illegality, invalidity or unenforceability shall not affect any other
provision(s) hereof and this Agreement shall remain in force and be effectuated
as if such illegal, invalid or unenforceable provision is not part of this
Agreement; provided, however, (i) if the deletion of any provision of this
Agreement frustrates a material purpose or right of Metropolitan or the
Stockholder, then Metropolitan or Stockholder may terminate this Agreement
forthwith and without further liability or obligation and (ii) absent such
frustration and to the extent legally possible, Metropolitan and the Stockholder
shall seek in good faith alternate provisions or arrangements to achieve the
same purposes as such provision.
12. Successors; Assignment. This Agreement and all of the provisions
hereof shall be binding and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, legal representatives, successors
(including any successor by merger, reorganization, consolidation or other
business combination) and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any party
hereto without the prior written consent of the other party.
13. Governing Law. This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with the laws of
the State of New York, without regard to its conflicts of law doctrine.
14. Jurisdiction and Venue. The Stockholder and Metropolitan hereby
agree that any suit, claim, action or proceeding relating to or arising under
this Agreement shall be brought exclusively in a state court of New York (a "New
York Court"). Each of the Company, the
5
Stockholder and Metropolitan hereby consents to personal jurisdiction in any
such action brought in any such New York Court, consents to service of process
upon it and waives any objection it may have to venue in any such New York Court
or to any claim that any such New York Court is an inconvenient forum. The
Stockholder and Metropolitan hereby waive trial by jury in any suit, claim,
action or proceeding in any court relating to or arising under this Agreement.
The Stockholder and Metropolitan confirm that the foregoing waiver is informed
and freely made.
15. Counterparts. This Agreement may be executed simultaneously in
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Any additional parties
who execute this Agreement after the date hereof, upon execution by
Metropolitan, shall be deemed a stockholder for purposes hereto.
16. Headings. The headings of the Sections of this Agreement are
inserted for convenience only and shall not constitute a part hereof or affect
in any way the meaning or interpretation of this Agreement.
17. Entire Agreement. This Agreement sets forth the entire agreement
and understanding of the parties hereto in respect of the subject matter
contained herein, and supersede all prior agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral or
written, by any officer, employee or representative of any party hereto.
18. Third Parties. Except as specifically set forth or referred to
herein, nothing herein expressed or implied is intended or shall be construed to
confer upon or give to any person or corporation, other than the parties hereto
and their successors or assigns, any rights or remedies under or by reason of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
METROPOLITAN CAPITAL ADVISORS, INC.
By:
------------------------------ -----------------------
George Raymond
------------------------------
Name and Title
6
EXHIBIT D
STOCKHOLDERS' AGREEMENT
STOCKHOLDER'S AGREEMENT, dated February 17, 1997 (the "Agreement"),
between Metropolitan Capital Advisors, Inc., a Delaware corporation
("Metropolitan"), and Scoggin, Inc., a Delaware corporation, and Scoggin Capital
Co. I, a New York general partnership (each, a "Stockholder" and together, the
"Stockholders").
WHEREAS, Metropolitan and the Stockholders have independently concluded
that their respective interests, and the interests of other shareholders of
Raymond Corporation, a New York corporation (the "Company") would be furthered
by seeking greater shareholder representation on the Company's Board of
Directors;
WHEREAS, Metropolitan has informed the Stockholders that it has reached
understandings with other shareholders of the Company owning in excess of
700,000 shares of common stock of the Company; and
WHEREAS, Metropolitan and the Stockholders desire to establish in this
Agreement certain terms and conditions relating to the parties' voting of the
common stock of the Company in regard to election of such directors and matters
related thereto; and
WHEREAS, Metropolitan is the general partner of Bedford Falls
Investors, L.P., a Delaware limited partnership ("Bedford"), which is the
beneficial owner of shares of common stock of the Company, and as general
partner Metropolitan has the power to direct the voting of such shares of common
stock;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
1. Representations and Warranties.
(a) Metropolitan represents and warrants to the Stockholders as
follows:
(i) Metropolitan has full power and authority to execute,
deliver and perform this Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by Metropolitan and constitutes a valid
and binding obligation of Metropolitan, enforceable against
Metropolitan in accordance with its terms;
(iii) The execution, delivery and performance of this
Agreement by Metropolitan do not violate or conflict with or
constitute a default under the Metropolitan organizational
instruments or any material agreement to which it is a party or
by which it or its property is bound.
(b) Each Stockholder represents and warrants to Metropolitan as
follows:
(i) Such Stockholder has full power and authority to
execute, deliver and perform this Agreement;
(ii) This Agreement has been duly and validly executed and
delivered by such Stockholder and constitutes a valid and
binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms; and
(iii) The execution, delivery and performance of this
Agreement by such Stockholder does not violate or conflict with
or constitute a default under any material agreement to which
such Stockholder is a party, or by which such Stockholder is
bound.
2. Term of Agreement. The term (the "Term") of this Agreement shall
commence on the date hereof and shall continue until the earlier to occur of (i)
the conclusion of the second meeting of stockholders of the Company at which
directors are elected following the execution hereof, (ii) the date on which the
Voting Power of the Voting Securities beneficially owned by Metropolitan and any
affiliates shall represent less than five percent (5%) of the Total Voting
Power, (iii) the date on which nominees supported by Metropolitan constitute a
majority of the Board of Directors of the Company, and (iv) September 30, 1997,
if, but only if, neither Metropolitan nor its affiliates has by such date
validly nominated persons for election to the Company's Board of Directors. For
the purposes of this Agreement, (i) the term "Voting Securities" shall mean all
securities of the Company entitled to vote generally in the election of
directors of the Company, and (ii) the Term "Voting Power" shall mean voting
power of Voting Securities in the general election of directors of the Company,
and (iii) the term "Total Voting Power" shall mean the total combined Voting
Power of all the Voting Securities then outstanding.
3. Voting and Other. (a) Each of the Stockholders and Metropolitan
agree that, during the Term (i) it will, and will cause their respective
controlled affiliates to, be present, in person or represented by proxy, at all
stockholder meetings of the Company for the election of directors, so that all
Voting Securities beneficially owned by it and its controlled affiliates shall
be counted for the purpose of determining the presence of a quorum for the
election of directors at such meetings, and (ii) it will, and will cause its
controlled affiliates to, vote, or act by consent with respect to, all Voting
Securities beneficially owned by it and its controlled affiliates (x) for the
election of the nominees for the Company's Board of Directors nominated by
Metropolitan, or its controlled affiliates, or such other nominees otherwise
identified in writing by Metropolitan as being nominees for which Metropolitan
will cast votes in favor ("Metropolitan Nominees"), and (y) for such other
actions of stockholders as may be reasonably necessary or helpful to cause
2
the election of the Metropolitan Nominees to the Company's Board of Directors at
the earliest possible time (so long as such actions are not determined by each
Stockholder, in good faith, to be injurious to the Stockholder or its controlled
affiliates), including such amendments to the Company's by-laws or Certificate
of Incorporation as may be proposed or supported by Metropolitan. In furtherance
of the foregoing, Stockholder agrees that, upon request of Metropolitan,
Stockholder will execute and deliver at Metropolitan's request and instructions,
one or more proxies which may be used by Metropolitan to vote Stockholder's
Voting Securities in the manner set forth herein. Other than the foregoing,
there shall be no restrictions on the Stockholder's or Metropolitan's ability to
vote any Voting Securities.
(c) Scoggin, Inc. agrees to reimburse Metropolitan for its
Equitable Portion (as defined below) of all legal, printing, solicitor,
litigation and other expenses incurred in connection with this agreement or the
nomination or election of the Metropolitan Nominees, such reimbursement to be
made promptly following the request of Metropolitan as it may be made from time
to time and upon presentation of reasonable documentation therefor. In the event
reimbursement of such expenses is thereafter made to Metropolitan by the
Company, then Metropolitan shall promptly, in turn, return to Scoggin, Inc. an
Equitable Portion of any such reimbursed amounts received by Metropolitan. For
purposes hereof, "Equitable Portion" shall mean such portion of expenses as may
be determined, in the good faith judgment of Metropolitan, to be allocable to
Scoggin, Inc. based upon the relative number of Voting Securities held by
Scoggin, Inc. and its affiliates, as compared to the aggregate number of Voting
Securities held by Metropolitan and its affiliates and any other party which may
agree to share in the expenses arising out of the nomination and support of the
Metropolitan Nominees. For purposes hereof, unless otherwise agreed expenses
incurred by the Stockholders and their controlled affiliates for expenses of the
type referred to above, in connection with this agreement or the nomination or
election of the Metropolitan Nominees (and for which reasonable documentation is
provided by Scoggin, Inc. to Metropolitan) shall be deemed incurred by
Metropolitan and shall be shared by the parties as set forth herein.
4. Acquisition of Voting Securities. Notwithstanding any other
provision of this Agreement, any Voting Securities acquired by a Stockholder or
its controlled affiliates, or Metropolitan or its controlled affiliates
subsequent to the date hereof, and within the Term, shall automatically and
without any action by any party hereto, be subject to the provisions of this
Agreement.
5. Certain Prohibited Actions. Other than in support of the
Metropolitan Nominees, as contemplated by this Agreement, during the Term,
without the prior written consent of the other, Metropolitan and the
Stockholders will not, and will cause each of their respective controlled
affiliates not to, singly or as part of a "group", directly or indirectly,
through one or more intermediaries (i) make, support, or vote in favor of, or in
any way participate, directly or indirectly, in any "solicitation" of "proxies"
(as such terms are defined or used in Regulation 14A under the Exchange Act)
with respect to the Voting Securities (including by the execution of actions by
written consent), become a "participant" in any "election contest" (as such
terms are defined or used in Rule 14A-11 under the Exchange Act) with respect to
the Company or seek to advise or influence any person or entity with respect to
the voting of any Voting Securities; (ii)
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initiate, propose, or participate in the solicitation of stockholders for the
approval of, one or more stockholder proposals with respect to the Company in
Rule 14A-8 under the Exchange Act or induce any other individual or entity to
initiate any stockholder proposal relating to the Company; (iii) form, join,
influence or participate in a "group", act in concert with any other person or
entity or otherwise become a "person", for the purpose of acquiring, holding,
voting or disposing of any Voting Securities or taking any other actions
prohibited under this Section 5; (iv) act, alone or in concert with others
(including by providing financing for another party), to seek or offer to
control the Company (provided that actions of the Metropolitan Nominees on the
Board pursuant to Section 3(a) shall not be deemed a violation of the
foregoing); (v) deposit any Voting Securities in a voting trust or subject any
Voting Securities to any arrangement or agreement with respect to the voting
thereof; or (vi) disclose any intention, plan or arrangement inconsistent with
the foregoing prohibitions or advise or assist any other person in connection
with the foregoing prohibitions; provided, however, that nothing contained
herein shall prohibit affiliates of Metropolitan or either Stockholder from
publicly announcing their position as a stockholder or director with respect to
any matter concerning the Company.
6. Disposition of Voting Securities. During the Term, the Stockholder
shall not, and shall cause its controlled affiliates not to, transfer any Voting
Securities, whether by sale, assignment, pledge, encumbrance, gift, bequest,
appointment or otherwise, unless the transferee of such Voting Securities agrees
in writing to be bound by the provisions hereof, provided, however, that the
Stockholders may sell an aggregate number of shares free from the restrictions
hereof which is equal to the number of shares sold by Metropolitan and its
controlled affiliates after the date hereof.
7. Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by i t of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreement and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
8. Amendment and Modification. This Agreement may be amended, modified
and supplemented only by written agreement of Metropolitan and the Stockholder.
9. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be made in writing by hand delivery,
registered first-class mail, telecopier or air courier guaranteeing overnight
delivery:
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(a) If to Metropolitan:
Metropolitan Capital Advisors, Inc.
c/o Joseph F. Mazzella, Esq.
Lane Altman & Owens LLP
101 Federal Street
Boston, MA 02110
or to such other person or address as Metropolitan shall furnish to the
Stockholders in writing;
(b) If to the Stockholders:
Scoggin, Inc.
c/o David P. Levin, Esq.
Kramer, Levin, Naftalis & Frankel
919 Third Avenue
New York, NY 10022
or to such other person or address as the Stockholder shall furnish to
Metropolitan in writing.
All such notices, requests, demands and other communications shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five business days after being deposited in the mail, postage
prepaid, if sent by registered first-class mail; when receipt acknowledged, if
telecopied; and on the next business day, if timely delivered to an air courier
guaranteeing overnight delivery.
10. Severability. In the event that any provision(s) of this Agreement
shall be held illegal, invalid or unenforceable under applicable law, then such
illegality, invalidity or unenforceability shall not affect any other
provision(s) hereof and this Agreement shall remain in force and be effectuated
as if such illegal, invalid or unenforceable provision is not part of this
Agreement; provided, however, (i) if the deletion of any provision of this
Agreement frustrates a material purpose or right of Metropolitan or the
Stockholder, then Metropolitan or Stockholder may terminate this Agreement
forthwith and without further liability or obligation and (ii) absent such
frustration and to the extent legally possible, Metropolitan and the Stockholder
shall seek in good faith alternate provisions or arrangements to achieve the
same purposes as such provision.
11. Successors; Assignment. This Agreement and all of the provisions
hereof shall be binding and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, legal representatives, successors
(including any successor by merger, reorganization, consolidation or other
business combination) and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any party
hereto without the prior written consent of the other party.
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12. Governing Law; Obligations. This Agreement and the legal relations
among the parties hereto shall be governed by and construed in accordance with
the laws of the State of New York, without regard to its conflicts of law
doctrine. The parties hereto agree and acknowledge that they shall use
reasonable efforts, in good faith, to comply with all applicable state and
federal securities regulations with respect to the matters and transactions
contemplated herein.
13. Jurisdiction and Venue. The Stockholder and Metropolitan hereby
agree that any suit, claim, action or proceeding relating to or arising under
this Agreement shall be brought exclusively in a state court of New York, in the
City of New York (a "New York Court"). Each of the Company, the Stockholder and
Metropolitan hereby consents to personal jurisdiction in any such action brought
in any such New York Court, consents to service of process upon it and waives
any objection it may have to venue in any such New York Court or to any claim
that any such New York Court is an inconvenient forum. The Stockholder and
Metropolitan hereby waive trial by jury in any suit, claim, action or proceeding
in any court relating to or arising under this Agreement. The Stockholder and
Metropolitan confirm that the foregoing waiver is informed and freely made.
14. Counterparts. This Agreement may be executed simultaneously in
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
15. Headings. The headings of the Sections of this Agreement are
inserted for convenience only and shall not constitute a part hereof or affect
in any way the meaning or interpretation of this Agreement.
16. Entire Agreement. This Agreement sets forth the entire agreement
and understanding of the parties hereto in respect of the subject matter
contained herein, and supersede all prior agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral or
written, by any officer, employee or representative of any party hereto.
17. Third Parties. Except as specifically set forth or referred to
herein, nothing herein expressed or implied is intended or shall be construed to
confer upon or give to any person or corporation, other than the parties hereto
and their successors or assigns, any rights or remedies under or by reason of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
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METROPOLITAN CAPITAL ADVISORS, INC. SCOGGIN, INC.
By: By:
------------------------- -------------------------
------------------------- -------------------------
Name and Title Name and Title
SCOGGIN CAPITAL CO. I
By:
-------------------------
General Partner
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